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Abascal v. Fleckenstein

July 30, 2008


The opinion of the court was delivered by: William M. Skretny United States District Judge



In this action, pro se Plaintiff Isidro Abascal alleges pursuant to 42 U.S.C. § 1983 that Defendants subjected him to cruel and unusual punishment and failed to protect him in violation of the Eighth Amendment.

Plaintiff commenced this action on May 26, 2006, by filing a Complaint in the United States District Court for the Western District of New York. Because Plaintiff was granted in forma pauperis status, his Complaint was screened pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(a). Presently before this Court is Defendants' Motion to Dismiss all but one of Plaintiff's causes of action, filed on April 6, 2007.*fn1 For the following reasons, Defendants' motion is granted in part and denied in part.


The following facts, which are alleged in the Complaint, are assumed to be true for purposes of the instant motion. At all times relevant, Plaintiff was an inmate in the custody of the New York Department of Correctional Services ("DOCS") incarcerated at the Attica Correctional Facility. (Complaint, Docket No. 1, pp. 1-2).*fn2 Plaintiff is now on parole. (Complaint, p. 1).

Plaintiff alleges that while incarcerated, he was deprived of meals, deprived of electricity in his cell, his legal documents were taken from him and read, he was physically assaulted, and he was verbally threatened. At all times relevant, Defendants Dennis Fleckenstein, William Kump, and Chester Kosmowski, were correctional officers ("CO"') at Attica. (Complaint, pp. 1-2).

Plaintiff alleges that Fleckenstein, Kump, and Kosmowski deprived him of meals.*fn3 On September 18, 2004, Kump allegedly refused to open Plaintiff's cell to allow him to report for chow (meal time). (Complaint, p. 4, ¶ 15). On fourteen additional occasions beginning in December 2004 and ending in March 2005, Fleckenstein also allegedly refused to open Plaintiff's cell so that he could report for chow. (Complaint, pp. 4-6). Plaintiff further alleges that Kump was involved in two of these thirteen instances and Kosmowski was involved in five of the instances. (Complaint, pp. 5-6, ¶¶ 28-32, 34, 36).

For example, on February 21, 2005, while Plaintiff was waiting to go to chow, Kosmowski told him that he was going to be fed in his cell instead. (Complaint, p. 5, ¶ 22). Plaintiff was then given two milk cartons, one small apple juice container, and a bag with six small bags of sugar. (Complaint, p. 5, ¶ 22). When Plaintiff later inquired about the food he received, Fleckenstein told him that the "feed-up personnel" had screwed up. (Complaint, p. 5, ¶ 22).

Finally, Plaintiff alleges that he missed seven of twelve meals in the 4-day period between March 3 and March 6, 2005. (Complaint, p. 6, ¶ ¶ 30-34, 36-38).

Plaintiff's deprivation of electricity claims involve Fleckenstein and Kosmowksi. They allegedly turned off the power in Plaintiff's cell on February 27, 2005, at approximately 12:30 p.m. (Complaint, p. 5, ¶ 28). Plaintiff further alleges that on March 5, 2005, Fleckenstein turned off the power in his cell after he saw him using his typewriter. (Complaint, p. 6, ¶ 35).

Plaintiff also alleges that his legal documents were taken from him and read. On November 13, 2004, Kump and Fleckenstein allegedly stopped Plaintiff in the entrance of the law library to search his legal folder. (Complaint, p. 4, ¶ 16). Kump allegedly read Plaintiff's legal papers and notes, and asked Plaintiff if he was going to sue the state for something that happened while he was DOCS' custody. (Complaint, p. 4, ¶ 16). Plaintiff responded that he was not required to answer. (Complaint, p. 4, ¶ 16). Further, at 12:30 p.m. on January 18, 2005, when Plaintiff returned from chow, he saw his legal documents (civil rights amended complaint) on the CO's desk 240 feet from his cell. (Complaint, p. 4, ¶ 20). After he requested the return of his documents, Plaintiff proceeded to his cell, which had been searched. (Complaint, p. 4, ¶ 20). Five minutes later, Kump returned the documents to Plaintiff and gave him a search receipt. (Complaint, p. 4, ¶ 20).

Plaintiff's physical assault claims are against Fleckenstein and Kosmowski. Plaintiff alleges that Fleckenstein physically assaulted him, and that Kosmowski witnessed the incident, but did nothing to stop Fleckenstein or help Plaintiff. On February 22, 2005, at approximately 9:50 a.m., Fleckenstein allegedly elbowed Plaintiff in his right rib cage without provocation while on the way to a sick-call.*fn4 (Complaint, p. 5, ¶ 24). Plaintiff did not resist or threaten Fleckenstein, but told him that he was going to report the assault. (Complaint, p. 5, ¶ 24). At approximately 10:15 a.m., when Plaintiff returned from sick call, he reported the assault to the Hall Captain and told him to report it to the Block Sergeant. (Complaint, p. 5, ¶ 24).

Plaintiff further alleges that on the same day at approximately 10:25 a.m., Kosmowski asked Plaintiff why he bumped his partner in reference to the physical incident with Fleckenstein earlier that day. (Complaint, p. 5, ¶ 26). Plaintiff denied bumping Fleckenstein, but Kosmowski responded that he saw Plaintiff bump him. (Complaint, p. 5, ¶ 26). Plaintiff told Kosmowski that he was part of a conspiracy. (Complaint, p. 5, ¶ 26).

Plaintiff also alleges several instances where Fleckenstein or Kump verbally threatened him. On February 21, 2005, after Plaintiff complained about being fed in his cell, Fleckenstein approached Plaintiff's cell with an intimidating look and told him twice, "You better watch your step!" (Complaint, p. 5, ¶ 22). On November 13, 2004, when Plaintiff's legal folder was searched, Kump also allegedly told Plaintiff, "Get out of here before I slap the shit out of you to give you a reason to sue the state!" (Complaint, p. 4, ¶ 16). Fleckenstein, who was present when Plaintiff reported the physical incident of February 22, 2005, told Plaintiff, "The next time, I'm going to wrap you up in a bag!" (Complaint, p. 5, ¶ 25). On March 4, 2005, at approximately 11:50 a.m., Fleckenstein allegedly made a fist near Plaintiff's face and said, "We're going to pound you!" and "We're going to stop your bullshit!" (Complaint, p. 6, ¶ 33).

Finally, Plaintiff alleges that Conway and Eagen failed to protect him from a known pattern of abuse, despite being informed of the conditions in writing. (Complaint, pp. 8-9). At all times relevant, Defendant James Conway was the Superintendent at Attica, and Defendant Thomas Eagen was the Director of the Inmate Grievance Program in the DOCS. (Complaint, pp. 1-2). On January 7, February 16, and March 17, 2005, Plaintiff appealed Conway's unfavorable decisions regarding three harassment and retaliation grievances that he had filed on December 3, 2004, January 29, 2005, and February 24, 2005. (Complaint, pp. 4-6, ¶¶ 19, 21, 39). Eagen denied the appeals on February 9, March 23, and April 20, 2005. (Complaint, pp. 4-6, ¶¶ 19, 21, 39).


Cognizant of the distinct disadvantage that pro se litigants face, federal courts routinely read their submissions liberally, and interpret them to raise the strongest arguments that they suggest. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Since Plaintiff is proceeding pro se, this Court has considered his submissions and arguments accordingly.

Plaintiff alleges that Defendants' subjected him to cruel and unusual punishment in violation of the Eighth Amendment. He further alleges that Defendants Conway and Eagen violated his constitutional rights by failing to protect him. Defendants argue that all causes of action, except the claim of excessive force against Fleckenstein, should be dismissed for failure to state a claim upon which relief can be granted or for insufficient pleading. In addition, Defendants argue that Plaintiff's claims against them in their official ...

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